DFEH: New Procedures for Investigation and Litigation

Effective January 1, 2013, the California Department of Fair Employment and Housing (DFEH) has changed the way it investigates and litigates employment discrimination complaints. These changes affect any employer with five or more employees working in California. The most significant changes are as follows:

The new law eliminates the Fair Employment and Housing Commission. The Department will now have a Fair Employment and Housing Council, which will consist of seven members appointed by the Governor, who will assume the former Commission’s regulatory functions.

The law ends administrative adjudication of complaints. The DFEH has authority to file a civil action directly in the superior court. For any accusations currently pending before the former Commission, the DFEH may remove it to superior court, though the Office of Administrative Hearings has been retained to adjudicate the few remaining administrative actions.

The administrative investigative process now proceeds as follows: after a Charge of Discrimination is filed, the complainant can request an immediate right to sue, or the DFEH will investigate the Charge. If the DFEH finds no merit to the Charge, it will be dismissed. If the DFEH finds that the Charge has merit, the matter will be directed to mandatory dispute resolution, free of charge, in the DFEH’s internal Dispute Resolution Division. If the matter is not settled during the mandatory dispute resolution process, the DFEH can file a civil action in court.

The DFEH may be awarded attorneys’ fees and costs when it is the prevailing party in litigation. The agency will use $170 per hour as its standard fee.